...wide trinket store run by the evangelical Christian Green family, in Burwell v. Hobby Lobby, has...

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Law and PhilosophyAn International Journal forJurisprudence and Legal Philosophy ISSN 0167-5249 Law and PhilosDOI 10.1007/s10982-015-9246-9

The Moral Basis of Religious Exemptions

Kevin Vallier

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KEVIN VALLIER

THE MORAL BASIS OF RELIGIOUS EXEMPTIONS*

(Accepted 24 September 2015)

ABSTRACT. Justifying religious exemptions is a complicated matter. Citizens askto not be subject to laws that everyone else must follow, raising worries aboutequal treatment. They ask to be exempted on a religious basis, a basis that secularcitizens do not share, raising worries about the equal treatment of secular andreligious citizens. And they ask governmental structures to create exceptions in thegovernment’s own laws, raising worries about procedural fairness and stability.We nonetheless think some religious exemptions are appropriate, and in somecases, that exemptions are morally required. So how are we to determine whenreligious exemptions are justified? This article employs a public reason frameworkto provide an answer. I show how to publicly justify religious exemptions. Mythesis is that a citizen merits a religious exemption under four conditions: (a) if shehas sufficient intelligible reason to oppose the law, (b) if the law imposes uniqueand substantial burdens on the integrity of those exempted that are not off-set bycomparable benefits, (c) if the large majority of citizens have sufficient reason toendorse the law, and (d) if the exempted group does not impose significant costson other parties that require redress. If these conditions are met, then legislativeand/or judicial bodies should carve out an exemption for those requesting them.

Religious exemptions are big news in the United States, due largelyto the Health and Human Services contraception mandate and thegradual legalization of gay marriage. Little Sisters of the Poor, areligious order devoted to hospice care, has requested an exemptionboth from financing contraception for their employees and fromauthorizing a third-party to do the same. Hobby Lobby, a nation-

* For helpful remarks on the paper, I thank Chad Van Schoelandt, Micah Schwartzman, AndyKoppelman, Ben Bryan, Jerry Gaus, John Thrasher, two anonymous referees, and a number ofattendees at the 2015 Religion and Political Theory conference at University College London.

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wide trinket store run by the evangelical Christian Green family, inBurwell v. Hobby Lobby, has been granted an exemption from beingforced to pay for four contraception medications that (the Greensbelieve) can be used to reliably abort early-term fetuses. Regardingsame-sex marriage, wedding photographer and evangelical ChristianElaine Huguenin has been successfully sued for refusing to pho-tograph a lesbian wedding and forced to pay $6,000 in attorney’s feesand costs. Unless Huguenin alters her policy, she either cannotadvertise to the public or must shut down her business. She toorequested a religious exemption from a state law, this time the NewMexico law prohibiting discrimination based on sexual orientation.1

The Indiana legislature has faced strong criticism for the reaffirmingof its Religious Freedom Restoration Act (RFRA), putatively meantto guarantee legal standing to religious business owners to seekexemptions from serving gay and lesbian weddings. These cases arethe latest in a long history of appeals for religious exemptions,including conscientious exemption from the military draft, drugprohibition laws, and participating in Social Security. In fact, allow-ing religious exemptions is a widely respected practice of Americanconstitutional law as old as the United States.2

Despite their prominent place in American law, religiousexemptions raise moral concerns. Individuals ask to not be subject tolaws that everyone else must follow, raising worries about the equaltreatment of burdened and exempted citizens. They ask to be ex-empted on a religious basis, raising worries about the equal treat-ment of secular and religious citizens. And they ask governmentalstructures to create exceptions in the government’s own laws, raisingworries about procedural fairness and stability. We nonetheless thinkat least some religious exemptions are justified. The purpose of thisarticle is to use the public reason liberal framework to provide amethod for carefully assessing exemption requests that takes thesecomplex concerns into account. I will not argue in favor of religiousexemptions for any particular group. Instead, I show how to publiclyjustify religious exemptions in general.

1 The Supreme Court denied certiorari in April 2014. See Elane Photography v. Willock, 309 P.3d 53(2013), cert. denied, 2014 WL 1343625.

2 Kenneth Greenawalt, Religion and the Constitution, Volume 1: Free Exercise and Fairness (Princeton:Princeton University Press, 2006), Chap. 2.

KEVIN VALLIER


My thesis is that a citizen merits a religious exemption under fourconditions: (a) if she has sufficient intelligible reason to oppose thelaw, (b) if the law imposes unique and substantial burdens on theintegrity of those exempted that are not off-set by comparablebenefits, (c) if the large majority of citizens have sufficient reason toendorse the law, and (d) if the exemption does not impose significantcosts on other parties that require redress.3 If these four conditionsare met, then legislative and/or judicial bodies morally should carveout an exemption for those requesting them.4

I will vindicate my thesis in nine steps. In Section I, I brieflyreview the basic structure of public reason liberalism and how publicjustification occurs. In Section II, based on the ideal of public justi-fication, I develop a principle of intelligible exclusion to determinewhen citizens have sufficient reason to reject a law. In Section III, Ishow that something like the US Constitution’s Free Exercise Clauseis required by the principle of intelligible exclusion, and so can beused as a basis for generating religious exemptions. Section IV ex-plains condition (b) by developing conceptions of integrity andsubstantial burdens on free exercise. Section V explains condition (c),that is, how it could be that most citizens would have sufficientreason to endorse a law while a minority has sufficient reason toreject it, and condition (d) by demonstrating that imposing costs onthose subject to the law can undermine the case for an exemption, inlieu of compensation. Section VI addresses what happens when theseconditions are not met, namely when the law should stand or whenit should be repealed. Here I will also forestall the objection that myview allows for too many exemptions to be practicable. Section VIIaddresses exemption-like cases where states make different legalarrangements available to different groups, and argues that in manycases such arrangements can be publicly justified. Section VIII arguesthat secular reasons can also merit exemptions, such that religiousexemptions are not special. Section IX concludes. An Appendix fol-lows that contains an exemption table, representing a decision pro-cedure for determining when exemptions should be granted.

3 It is also possible that the majority will endure the costs of the exemption without wantingcompensation. I address this possibility below.

4 I stress ‘morally should’ even if legal bodies have sufficient legal reason to follow judicial proce-dures that lead in another direction.

THE MORAL BASIS OF RELIGIOUS EXEMPTIONS


I. PUBLIC JUSTIFICATION

The ideal of public justification affirmed by public reason liberals holdsthat state coercion must be justified for each reasonable point of viewin a free society.5 State coercion must be justified because it is imposedby free and equal persons on other free and equal persons. If suchcoercion is to be compatible with persons treating each other as freeand equal, then the coercion must be such that those subject to it canendorse it. Otherwise, those imposing the coercion are forciblydirecting or violating the wills of those they coerce. The ideal of publicjustification is generally rooted in respect for persons and the desire toavoid authoritarianism in politics.6 It is sometimes rooted in the valueof political community, where publicly justified laws are seen as theonly ones compatible with civic friendship.7 These moral foundationsall attempt to capture, in one way or another, that it is wrong for freeand equal persons to coerce one another unless each coerced party canconsistently accept the law as binding and compatible with her broadermoral and philosophical commitments.

For a law, policy, legal procedure or legal body to be publiclyjustified it must be justified for each person subject to the relevantcoercion.8 This is typically interpreted to mean that each person hassufficient reason of her own to endorse the coercion. The coercionmust be justified to her on her own terms. In this way justificatoryreasons within public reason liberalism are internal in that the personwho has the reason can be made aware of this fact by reflecting onher rational commitments and values.9 By appealing to internalreasons, the public reason liberal does not take a position on the

5 Some supporters of public reason liberalism challenge the tight connection between public reasonand coercion. See Andrew Lister, Public Reason and Political Community (Bloomsbury Academic, 2013),Chap. 3 and Chad Van Schoelandt, ‘Justification, Coercion, and the Place of Public Reason’, PhilosophicalStudies 172 (2014): pp. 1031–1050.

6 Christopher Eberle, Religious Conviction in Liberal Politics (New York: Cambridge University Press,2002), p. 68. Stephen Macedo, Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitution-alism (Oxford: Clarendon Press, 1990), p. 78. Charles Larmore, The Autonomy of Morality (New York:Cambridge University Press, 2008). Gerald Gaus, The Order of Public Reason (New York: CambridgeUniversity Press, 2011), p. xvi.

7 Lister (2013, p. 105).8 Kevin Vallier, Liberal Politics and Public Faith: Beyond Separation (Routledge, 2014), pp. 24–25. There

is some controversy about what is to be justified, laws or constitutional essentials. Quong and Gaus leantowards the former, Rawls towards the latter. Jonathan Quong, Liberalism without Perfection (New York:Oxford University Press, 2011), Chap. 9; Gaus (2011, pp. 495–497); John Rawls, Political Liberalism (2nded.) (New York: Columbia University Press, 2005), p. liii.

9 Gaus (2011, p. 250).

KEVIN VALLIER


metaphysics of moral reasons. There may well be non-internal rea-sons, and internally accessible reasons could have a mind-indepen-dent metaphysical status. Public reason liberals make the moremodest claim that only internally accessible reasons are coercion-justifying. To illustrate, suppose for the sake of argument that RomanCatholicism is a false religion. If so, do nuns have sufficient reason tokeep their vows of poverty and chastity? In one sense, they obviouslydo not, given that they have a false religious view. But in another,quite plain sense, they do have such reasons, in virtue of the fact thatthey are deeply committed to Roman Catholic doctrine and prac-tices. This latter sort of reason is the currency of public justification.

When public reason liberals say that someone has sufficient reasonto endorse a law or policy, they typically mean that the balance ofher justificatory reasons favors the policy. In epistemic terms, shelacks defeaters for her reasons to endorse the law.10 She lacks suf-ficient reason to reject the law and has positive reason to endorse itas the best among the alternatives, or at least as better than no law atall. The question of sufficiency also has implications for the relevantcomparison class of coercive proposals. Public reason liberals oftensay that a law can be publicly justified if it is superior to no law at all,as judged by each person’s set of reasons. A corollary is that a lawcannot be publicly justified if the balance of some persons’ reasonsfavors no law at all over the proposed law.11 To show that a law isconclusively publicly justified is to show that all alternative proposalsare regarded as inferior to no law at all.12 If multiple laws are re-garded as superior to no law, however, some say that they areinconclusively justified, since the aforementioned law has competitors.In such cases, the reasons of the public cannot demonstrate that onelegal proposal is regarded as best from the perspective of society. Inthis case, public reason liberals oftentimes appeal to decision pro-cedures, like legislative voting rules or judicial systems, in order toselect a member of the set of inconclusively justified proposals.13

Decision procedures themselves must be publicly justified, as they

10 Michael Sudduth, Defeaters in Epistemology. Internet Encyclopedia of Philosophy 2014 [cited March20, 2014]. Available from http://www.iep.utm.edu/ep-defea/, Sec. 6 provides a nice taxonomy ofdefeaters in epistemology.

11 Gaus (2011, p. 263).12 Gerald Gaus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (New York:

Oxford University Press, 1996), pp. 159–162.13 See ibid., Chaps. 13, 15.



http://www.aljazeera.com/news/middleeast/2014/03/israel-passes-ultra-orthodox-draft-law-2014312101340345116.html

are forms of coercive power, but they are handy for selecting pro-posals that justificatory reasons alone do not decisively favor.

When determining citizens’ justificatory reasons, public reasonliberals typically engage in some form of idealization.14 They askwhich reasons citizens would endorse as their own if they weresuitably rational and informed. Public reason liberals differ on howmuch idealization they appeal to, but they all agree that the set of aperson’s justificatory reasons and the set of reasons she endorseswhen asked are not identical. This is because the set of rationales anagent endorses in dialogue often have faults due to varying degreesof ignorance, irrationality or moral vice. Accordingly, in order todetermine whether a law or policy is publicly justified for an agent,public reason liberals ascribe reasons to her based on what she wouldendorse under the right conditions.

Public reason liberals also differ in that some are prepared tocircumscribe or restrict the set of justificatory reasons to eitherreasons that members of the public share at the right level of ideal-ization or the reasons that they can access or regard as justifiedaccording to common evaluative standards.15 Public reason liberalsthereby endorse either a shared reasons requirement or an accessiblereasons requirement. These restrictions are typically advanced basedon the intuition that respectful citizens, when engaged in significantand public political activities, will only appeal to reasons that otherscan accept or at least that they can regard as justified for others.Shareability and accessibility requirements are presently the norm inthe public reason literature, but a minority of theorists have devel-oped a contrasting convergence view on which all of a citizens’ ra-tionally recognized reasons, at the right level of idealization, cancount in favor or against the public justification of state coercion.Those who endorse shared and accessible reasons requirements arefrequently called consensus theorists, in contrast. I favor a conver-gence approach, though I cannot defend that view here.16

The reason that those who endorse the ideal of public justificationare referred to as public reason liberals is that they claim that acommitment to public justification will generate sound justificationsfor liberal institutions, such as constitutionally protected individual

14 Vallier (2014, pp. 146–151) discusses conceptions of idealization in public reason.15 Ibid., pp. 104–111 reviews these standards of justificatory reasons.16 For a defense, see Vallier (2014, Chap. 4).

KEVIN VALLIER


liberties, like freedom of speech and freedom of religion, politicalrights like the right to vote, and procedural liberties like the right to afair trial. Obviously we cannot review the derivations for reasons ofspace.17

II. THE PRINCIPLE OF INTELLIGIBLE EXCLUSION

Before I turn to religious exemptions, we must first draw, from theidea of public justification, a principle to determine when an indi-vidual has sufficient reason to demand that a law not apply to her,either via exemption or by repeal. This condition is satisfied when anindividual has sufficient reason to reject the law, but we need astandard that is a bit more precise. I propose that we use what I havecalled the principle of intelligible exclusion.18 I begin by explaining theidea of an intelligible reason that lies at its heart.

Fred D’Agostino and I define the notion of an intelligible reasonas follows:

Intelligibility: A’s reason X is intelligible for members of the public if and onlyif members of the public regard X as epistemically justified for A according toA’s evaluative standards.

This yields an intelligibility requirement on justificatory reasons, arestriction on the set of justificatory reasons:

Intelligibility Requirement: A’s reason X can justify coercing members of thepublic only if it is intelligible for them.19

Intelligible reasons are ones that members of the public can see asreasons for some agent even if they reject those reasons forthemselves. Imagine, for instance, an atheist public trying todetermine what reasons a member of a Muslim minority possesses.Given the widely understood commitment of public reason liberalsto recognizing reasonable pluralism, the idea that reasonable andrational people can have a great many views about what isultimately good and true, they can recognize Islamic belief as insome weak sense rational for many Muslim believers.20 If so, they

17 Gaus (1996, Part III) and Gaus (2011, Chap. VI) remain the most detailed attempts.18 Vallier (2014, p. 184).19 Kevin Vallier and Fred D’Agostino, Public Justification. Stanford Encyclopedia of Philosophy 2012

[cited March 18, 2014]. Available from http://plato.stanford.edu/entries/justification-public/. I haveworked out my own version of the standard in Vallier (2014, Chap. 1).

20 Rawls (2005, p. xix).




acknowledge that the Qur’an generates reasons for the Muslim inquestion, though it generates no reasons for atheists. Thus, a reasondrawn from the Qur’an is intelligible if members of the public regardthat reason as justifiably affirmed by the Muslim citizen at the rightlevel of idealization. If the reason is intelligible, it can enter intopublic justification so long as members of the public regard thereason as having some epistemic credentials. The reason is notobviously defeated or undermined by some plain, common sensefact, as would belief in fairies or conspiracy theories, and the reasonis held in a suitably sane and cool-headed manner.21 Elsewhere Ihave argued that the intelligibility requirement does not imply thatthe public has a strong veto over the use of reasons by individuals, asthey merely need to be able to ascribe epistemic credence to thereason for the one who has it.22 They must insist on at least this levelof epistemic pro-status. Otherwise, it is hard for them to determinewhether a member of the public is offering a reason at all. Whethermembers of the public can see the reason as a reason will alsodepend on the level of idealization at work.

The reason must also be minimally moral. That is, it must eitherflow from or be compatible with one’s moral convictions. Conse-quently, reasons to cause others pain for the pleasure of it, or reasonsto kill one’s competitors in a race, will not count as intelligible evenif those have the requisite epistemic credentials. Thus, while Qur’an-based beliefs can generate moral reasons based on the Muslim citi-zen’s evaluative standards (which include the Qur’an), the distinctivereasons of sociopaths and masochists cannot figure into public jus-tifications. In developing this distinction, my aim is to navigate

21 An anonymous referee wonders whether doctrines that members of the public see as logicallyincoherent can generate intelligible reasons. A dilemma suggests itself. If I allow logically incoherentdoctrines to generate reasons, then the intelligibility requirement isn’t an account of what we havereason to do, since we can’t have reason to do X and not-X at the same time and in the same way.However, if I rule out logically incoherent doctrines, then it looks like some exemption claimants lackdefeater reasons because their comprehensive doctrines are self-contradictory. In response, note firstthat cases of doctrinal contradiction are only pressing when a defeater is based on the contradiction insome direct way, which is seldom the case; most Christian objections, for instance, do not directlydepend on the doctrine of the Trinity. My general answer to the dilemma varies depending on thenature of the contradiction and its location (central or peripheral) within a member of the public’s webof belief. Central contradictions are reason-undermining, peripheral contradictions and distant contra-dictions (contradictions between, say, two far flung beliefs) are not reason-undermining. MarthaNussbaum discusses a similar concern in Martha Nussbaum, ‘Introduction’, in Martha Nussbaum andThom Brooks (eds.), Rawls’s Political Liberalism (New York: Columbia University Press, 2015), pp. 1–56,24–26.

22 See Vallier (2014, p. 106).

KEVIN VALLIER


between two threats: first, the threat that intelligibility allows plainlyimmoral reasons into public justification and, second, the threat thata thicker, more substantive moral restriction on reasons will runafoul of respect for reasonable pluralism. This is why I adopt astandard of ‘minimal’ morality, or that justificatory reasons mustcount as moral in content and at least broadly conform to our sharedunderstanding of what makes for a moral reason.

With the idea of an intelligible reason in hand, we can now appealto a formal definition of the principle of intelligible exclusion:

The Principle of Intelligible Exclusion: law-making bodies must (i) only imposelaws on members of the public that members of the public have sufficientintelligible reason to endorse and (ii) repeal or reform laws that members ofthe public have sufficient intelligible reason to reject.23

Intelligible Exclusion specifies when a state may impose a coercivelaw or policy on citizens in a publicly justified fashion. Lawmakersshould not impose laws that cannot be publicly justified in terms ofintelligible reasons rather than, say, the mainstream shared reasonsview. Thus Intelligible Exclusion prohibits a legislative body fromimposing laws on citizens that they have sufficient intelligible reasonto reject. Notice that Intelligible Exclusion allows for a law to berepealed or reformed, so legislatures have options as to how torespond to publicly unjustified law. This will be critical indetermining when and whether they should carve out religiousexemptions.

An important caveat before I continue. By my own admission theintelligibility requirement is held by a small minority in the publicreason literature. So why base an account of publicly justifiedexemptions upon it? One reason is that I think intelligibility is thecorrect standard, and that public reason liberals have failed to pro-vide an adequate refutation of the view or address the significantcriticisms of consensus alternatives. But another reason is that evenconsensus liberals will want to allow intelligible reasons to enter intopublic justification in at least some cases. For instance, if they regarda right to liberty of conscience as publicly justified based on sharedreasons, they will probably want to flesh out this right by attuning itto the diverse, religious reasons of many citizens. Liberty of con-

23 I develop this principle in Vallier (2014, p. 184). This essay will at times refer to the Principle ofIntelligible Exclusion as ‘Intelligible Exclusion’.



science, then, is exercised not merely on the basis of shared oraccessible reasons, but based on the diverse, intelligible reasons ofcitizens. That is to say, they will have a consensus justification foracknowledging the force of diverse, religious reasons in a particularlegal domain, namely religious exemptions.

One might argue that consensus liberals can defend exemptionsnot by appealing citizens’ reasons but rather to their convictions ofconscience, regardless of how irrational those convictions turn out tobe. I think this is mistaken, if for no other reason than we need somestandard to determine whether someone affirms his or her consci-entiously held convictions in a sane and sincere manner. While Icannot show as much here, the intelligibility requirement candetermine whether convictions of conscience are sane and sincere, asthey will be grounded in reasons that members of the public can seeas justified for the person who offers them.24

III. THE JUSTIFICATION OF FREE EXERCISE

The religious exemptions I will discuss are loosely based on a right tothe free exercise of one’s religion. They do not fall under freedom ofspeech and do not raise questions concerning the establishment ofreligion, at least not directly. So these religious exemptions will notbe requests to establish or disestablish religion or requests to haveother rights respected.

Nearly all liberal democratic constitutions contain explicit pro-tections for religious freedom. The American constitutional ap-proach to religious exemptions is based largely on its own FreeExercise Clause of the First Amendment. The religion clauses read:‘Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof’. The Free Exercise Clause isthe latter clause, and bars Congress from using legal coercion torestrict various facets of religious belief and practice. The clause hasbeen interpreted expansively, extending far beyond freedom ofworship to protecting styles of dress in the workplace and facial hairin prison, exempting children from public school and adults from

24 There may, however, be prudential reasons to exempt crazy and irrational individuals from legalburdens. I can think of two: first, we may not want legislative bodies to have the power to determinewhich requests are crazy and irrational and which aren’t, as the determination power may be abused ormistakenly applied. Alternatively, we might think the mere fact that such individuals will experiencepsychological distress from the legal burden imposed on them is enough to merit accommodation.

KEVIN VALLIER


laws against using controlled substances. And when the courts haveused the Free Exercise Clause to protect religious citizens fromcoercively imposed hardships that they suffer merely due to theirreligious beliefs and practices, we can see that it serves as a principleof exclusion: it bars the state from coercing citizens based on theimportance of protecting a person’s ability to act in accord with herdeepest reasons of integrity, at least if such reasons are religious.25

Legal bodies, then, acknowledge that core religious reasons some-times serve as defeaters for coercion.26

I believe that a free exercise principle is publicly justified for most,if not all, constitutional democracies because citizens typically havesufficient intelligible reason to act in accordance with the religiousteachings they endorse. For many citizens, religious activity is theprimary source of purpose and meaning in their lives, and so reli-gious commitment generates very strong reasons for action, suchthat intelligible reasons to engage in religious activity rise to the levelof defeaters for legal coercion. As Kent Greenawalt has put it, acentral goal of the Free Exercise Clause is to acknowledge the valuethat ‘many people care deeply about their religious beliefs andpractices, and they feel that their religious obligations supersededuties to the state if the two collide’.27 Similarly, a free exerciseprinciple is publicly justified based on the importance that citizensassign to their religious beliefs and practices. What’s more, theytypically regard the reasons to engage in religious practice and beliefas stronger than their duties to their respective nation-states, whichgives us further reason still to think that laws abridging free exercisecannot be publicly justified to them. Given the defeating power ofintelligible reasons on the Principle of Intelligible Exclusion, then,intelligible religious reasons in many cases will provide defeaters forlaws.

Importantly, to demonstrate that a law is defeated, one must alsoconsider its benefits. In principle, it is possible that citizens lacksufficient reason to reject laws that burden their integrity becausethose laws have other compensating benefits. But for paradigmatic

25 Though in legal practice it does not protect religiously motivated actions from laws that are notmeant to discriminate on religious grounds. I thank Micah Schwartzman for this point. A publiclyjustified free exercise principle, in my view, would cover these cases as well.

26 Though they acknowledge it as one factor to be weighed against others, whereas my principle issufficient for defeat. Thanks to Chad Van Schoelandt for this point.

27 Greenawalt (2006, p. 3).



free exercise complaints, the objectors recognize no sufficientlycompensating benefits.

IV. INTEGRITY AND SUBSTANTIAL BURDENS

We now have a suitable grasp of what it means for an individualmember of the public to have sufficient intelligible reason to objectto a law. So I next turn to flesh out and defend the second conditionfor warranting a religious exemption: whether the law in questionimposes a unique and substantial burden on the integrity of religiouscitizens.

I take an individual to have integrity when she is true to hercharacter, projects, plans and beliefs. On this view, which some callthe ‘identity’ conception of integrity, ‘integrity means fidelity tothose projects and principles that are constitutive of one’s coreidentity’.28 By a ‘principle’ I mean belief in a comprehensiveworldview or ideal, or some belief or practice entailed or implied bythat worldview or ideal. ‘Fidelity’ to these ideals requires acting inconcert with them and not violating them, at least not on a regularbasis. Projects include further complexities. Loren Lomasky takes aproject to have three features: (i) persistence, (ii) centrality and (iii)structure.29 Projects are persistent because they extend over longtime periods. Projects possess centrality when they ‘help explain alife’ or when those projects are the overall goals of a large number ofsub-goals. A project’s structure means that it produces ‘stability’ inan individual’s life by uniting her actions.30 One simple and extremeexample of someone with integrity is Martin Luther, due to hiswillingness to die for his theological belief in ‘justification by faith’.His belief constituted his core identity; it helps to explain who hewas.

The law places a substantial burden on the integrity of religiouscitizens both when it directly compels someone to act against reli-gious beliefs central to her integrity, and when it imposes indirectburdens. For our purposes, we can understand a substantial burden

28 Cox, Damian, Marguerite La Caze, and Michael Levin. 2010. Integrity. Edward N. Zalta, August13, 2010 2008 [cited October 22nd 2010]. Available from http://plato.stanford.edu/entries/integrity/,Sec. 2.

29 Loren Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press,1987), p. 26.

30 Ibid.

KEVIN VALLIER



as any form of legal coercion that significantly sets back an indi-vidual’s ability to live out her faith, either by direct compulsion or anex post legal penalty. To explain, the notion of a ‘substantial burden’here is related to the ‘substantial burden’ test in constitutional law.31

The core illustration of a substantial burden, as the Supreme Courthas understood it, is Sherbert v. Verner (1963). In this case, AdellSherbert, a Seventh-Day Adventist, worked a job operating a textilemill. Two years following her conversion, her employer extendedthe work-week to include Saturday, which Seventh-Day Adventiststreat as a Sabbath day, forbidding work. For this reason, Sherbertrefused to work and was fired. She could not easily find other workand asked for unemployment compensation. The EmploymentSecurity Commission denied her claim and the South Carolina Su-preme Court affirmed the commission’s decision. The SupremeCourt overturned the South Carolina Supreme Court’s ruling by a 7-2 decision. Denying Sherbert’s claim, the majority argued, imposed asubstantial burden on the free exercise of Sherbert’s religion. JusticeBrennan wrote the following for the majority: ‘to condition theavailability of benefits upon their appellant’s willingness to violate acardinal principle of her religious faith effectively penalizes the freeexercise of her constitutional liberties’.32

I do not claim that we should still use the Sherbert test. In fact, thetest has been modified, applied, restricted and reapplied at both thestate and federal levels. My point is merely to illustrate what asubstantial burden comes to and that such burdens take diverseforms. A publicly justified free exercise principle will employ asimilar notion. I should also stress that the notion of a substantialburden is not based merely on what people find burdensome,annoying or difficult. Instead, a substantial burden is one that sig-nificantly sets back one’s capacity to advance her interests and coreideals and doctrines, so long as those ideals and doctrines don’trequire the unjustified coercion of others. And I should also stressthat the substantial burdens should not be outweighed by factorsthat the relevant members of the public regard as compensation forthose burdens.

31 Though it is not the same. I discuss the substantial burden test to help give content to thephilosophical idea I’m appealing to. Note here the relationship to Smith, where Smith and Black werefired for their use of peyote and denied unemployment benefits.

32 Sherbert v. Verner, 526 U.S. 240, p. 518 (1963).



Finally, we should examine what it means for a law to impose aunique substantial burden on religious citizens. Obviously a uniqueburden is one that only applies to the person in question. But whyshould we restrict religious exemptions to unique burdens? Thesimple answer is that if the burden is not unique, or if a similarburden applies to a great many citizens, then the law in questionshould be repealed rather than selectively applied. In the case of theimposition of a broad substantial burden, for which there are nocompensating benefits, and sufficiently many citizens have defeatersfor the law, then the better course of action is to repeal it.33

We now have a sufficiently clear idea of what it means for a law toimpose a unique and substantial burden on the integrity of somerelatively small group of religious citizens. We should endorse thecondition because it comports with the ideal of public justification. Ifwe are to allow sufficient intelligible reasons to defeat the applicationof a law to an individual, we need a further condition to specify whensomeone has such reasons. When a law places a substantial burden onthe integrity of an individual, then arguably the individual has sufficientintelligible reason to object to the law.34 She rationally prefers no lawrestricting her liberty to having the restriction. Concern for integritythereby specifies when someone has defeater reasons. This is becauseintegrated persons endorse reasons issuing from their projects andprinciples that possess great normative weight and thereby generatestrong claims to noninterference. Public reason liberalism requiresformal recognition of these claims because citizens have the capacity topursue a conception of the good and live up to their ideals. Conse-quently, public reason liberals must ascribe integrity serious moralweight and so allow reasons of integrity to play a justificatory role.35

I should be clear, before continuing, that I am merely outliningthe case for religious exemptions. There are other good objections tolaws, some of which are based on restricting liberties that are muchless important. So I do not want to imply that objections torestricting other forms or more minor forms of liberty are publiclyjustified. Instead, I am simply circumscribing my subject matter.

33 Below I will discuss some complicating factors for this point.34 I am here excluding an analysis of forms of integrity built around crazy or flatly irrational beliefs. I

discuss those cases in Vallier (2014, pp. 57–66).35 Public reason liberals have frequently committed themselves to according integrity great reason-

generating power. See Ibid., pp. 86–89.

KEVIN VALLIER


V. MAJORITY ENDORSEMENT AND COSTS IMPOSED UPON OTHERS

I will now address when we should grant an exemption, as opposed torepealing (or not passing) a law that cannot be publicly justified to allmembers of the public. The brief explanation is that exemptions areappropriate only when the large majority of members of the publichave sufficient intelligible reason to endorse the law. To put it anotherway, we should not deny the benefits of a law to the overwhelmingmajority of the populace based on the objections of the few so long asthe minority group can be meaningfully exempted from the law. Thisis because the ideal of public justification is not meant merely to restrictcoercion but to outline the conditions in which it is desirable, namelywhen members of the public see the law as advancing their evaluativestandards. Laws are not always bad and many are good; so to allow asmall, exemptible group of individuals to opt-out seems to be a muchbetter solution than denying the benefits of the law to everyone. This ishow we justify condition (c), which permits religious exemptions onlyin cases where the large majority of members of the public have suf-ficient reason to endorse the law. If citizens lack such reason, then weshould repeal the law or prevent it from being passed in the first place.

Condition (d) is more complicated, as it employs the idea ofimposing a negative externality on others, a cost that may requirecompensation.36 To recall, condition (d) is satisfied when an exemp-tion does not impose significant costs on other parties that requireredress. The main reason for the condition is that the imposition ofcosts on non-exempted parties raises concerns about unfair treatmentand unfair burdens.37 To illustrate, first consider the innocuous case ofthe Sikh exemption from wearing motorcycle helmets in the UK. Sikhson motorcycles are a sufficiently small number of individuals withsufficiently idiosyncratic preferences (always wearing headgear andcarrying a kirpan among them) and therefore impose extremely lowcosts on other parties, if any. Consequently, almost no one resents thisform of special treatment. Vaccine exemptions are an importantcontrast. Many parents resent the exemptions because exempted

36 I focus here on ‘material’ costs like higher taxes, a greater risk of death in the military, and so on,rather than non-material costs, such as tolerating the exempted group’s repellant odor. Since theseexemptions raise special complications, I set them aside, though I am grateful to an anonymous refereefor raising the concern.

37 Condition (d) is not relevant when the exemption imposes no costs or trivial costs on the non-exempted portion of the public.



parents impose a risk on the children of parents who vaccinate. Fur-ther, exempted parents benefit from the herd immunity of vaccinatedchildren and adults, so they enjoy a benefit without paying the cost.This cost weakens the case for an exemption, both because the costborne is non-trivial and because the cost borne is unequal. The ma-jority must put up with the inequitable costs of exempting others.

Importantly, the mere fact that an exemption imposes costs on non-exempted persons is not sufficient to undermine the justification of theexemption. First, the government could compensate the majority insome fashion, such as a direct monetary transfer. Consider theexemption the Amish receive from Social Security taxes. Self-em-ployed Amish do not have to pay Social Security taxes; however, theyalso do not receive Social Security, or unemployment or welfare funds.In this way, the cost of the exemption is neutralized. Second, as alludedto above, the majority may not mind the substantial or unequal burdenplaced on them. We can imagine exemptions for historicallymarginalized and oppressed minorities that require support from thedominant majority. The majority may not object to the exemptionbecause they see the exemption as rectification for past injustices. Orthe majority may not resent the exemption because they regard theexemption as integral to respecting freedom of religion. So long as themajority do not mind the burdens or harms imposed upon them, thecase for the exemption remains intact.

But consider a case where condition (d) is arguably not satisfied:the exemption ultra-orthodox Haredim Jews have from the Israelidraft. Haredim Jews have, for sixty-five years, been exempt fromserving in the Israeli army so long as they are studying full-time at aseminary, or yeshiva. Due to their growing numbers, spurred bytheir rather spectacular reproduction rates, the Haredim have facedincreasing resentment because other Israelis bear the intense burdenof protecting them under dangerous conditions. In light of this, theKnesset voted to end the exemption, which was intended to go intoeffect in 2017. Under the new law, the Haredim will have to eitherjoin the army or perform a civilian service.38 The public reasonliberal should regard this level of inequality as sufficiently significant

38 Al Jazeera, ‘Israel Passages Ultra-Orthodox Draft Law’ (2014, March 12) Retrieved from http://www.aljazeera.com/news/middleeast/2014/03/israel-passes-ultra-orthodox-draft-law-2014312101340345116.html. At the time of this writing, the Knesset is considering whether to weaken the new restrictions.

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to justify ending the exemption by either repealing the draft entirelyor imposing it equally, depending on which option is publicly jus-tified. The costs borne by the majority are, in this case, high andunequal.39

Before continuing, I should address the concerns that, on myview, (i) citizens could receive exemptions based on animus andbigotry, and (ii) that they can use their exemptions to mistreatothers. Consider a case that raises both issues: exemptions for bakerswho wish to deny service to homosexual couples on religiousgrounds. The bakers may be able to abuse the exemption by denyingservices to homosexuals out of animus; further, their actions canstigmatize homosexual couples through their denial of service.

Fortunately, the conceptions of idealization and justificatoryreasons within my account of public justification should defeat thereason-generating power of much, if not all, reasons derived frombigotry, racism, sexism, and the like. To merit an exemption, onemust have a sufficient intelligible reason to object, and this reasonmust have minimal moral content. Further, a publicly justifiedexemption will have limits: if there is reason to suspect that anexemption is being abused to mistreat others, then that is ground forreevaluating its justification. But given the live possibility that someof these bakers are motivated by sincere religious conviction, thenmy account may require giving exemptions to some individuals inthis very small group of religious business owners. Readers will likelybalk, but if we recognize reasonable pluralism, we cannot simplyinsist that these business owners could not possibly have intelligiblereason to object.

Progressive critics could respond by arguing that denials of serviceharm gay and lesbian couples by undermining the social bases of self-respect. If a denial of service counts as harmful in the eyes of thepublic, rather than a mere offence, then this could justify revokingthe exemption. However, I should caution that the notion of harmdeployed by progressives is a matter of considerable, and arguably

39 Should Israel abolish its draft? It is possible that the Haredim, given that they are not pacifists, donot oppose the military policy generally, though it would come at a cost to them. So they may preferthe general application of the law to no law, which would require that they be subject to the draft. Inthat case, the draft might be publicly justified for them. Otherwise, the proper legal response wouldprobably be to abolish the draft, save in the case where drafted Israelis prefer the exemption toabolishing the draft, given that they regard the draft as critical for national security. So the exemptionmay merely be permitted, but not required in this case. I thank Chad Van Schoelandt for this point.



reasonable, contestation. Many members of the public see a denial ofservice as an offense, not as harm. On more traditional liberal views, adenial of service will not count as harmful because, in nearly all ofthe relevant cases, gay and lesbian couples have dozens of affordablealternative venues to purchase wedding cakes. If so, the conceptionof harm used to deny the exemptions may be sectarian, and there-fore not a suitable basis for law.

VI. ALTERNATIVES TO EXEMPTIONS

To further defend my account of publicly justified religiousexemptions, I should consider cases where a religious objection doesnot merit an exemption. That is, we should examine alternatives toexemptions. To begin, consider four approaches that we can take inresponse to requests for exemptions and religious accommodations. Iuse Kent Greenawalt’s terms for the first three approaches: neutral-restrictive, targeted accommodation and neutral accommodating.40 Theneutral-restrictive approach maintains that the state has an overrid-ing interest in securing uniform compliance with the law, such thatall persons should bear the burdens of the law equally, religious orno. The targeted accommodation approach only allows those withspecific religious objections to opt out of a law. The state’s interest inequality takes a backseat to its duty to respect liberty of conscience.The neutral-accommodating approach provides a general opt-outprovision for anyone to whom the law applies who requests anexemption. Citizens cannot opt out for any reason, and theexemption must be granted by request, but the exemption is notdirected at a specific group or individual. The fourth approach toaccommodation is to repeal objectionable laws due to the defeatersof religious citizens, or what I call the repeal approach.41

In general, the neutral-restrictive approach is the hardest to jus-tify, as it threatens to impose defeated coercion on religious citizens.The state’s interest in equal treatment and in imposing the law areseldom sufficiently strong enough to justify coercing people towhom the law cannot be publicly justified. I have defended condi-

40 Greenawalt (2006, p. 166).41 Though in some ways the repeal approach is not an approach to accommodation per se but rather

a response to an inability to produce particular accommodations.

KEVIN VALLIER


tions under which the targeted-accommodating approach is appro-priate – conditions (a)–(d). But in cases where neither the neutralrestriction nor the targeted accommodation are inappropriate,should we prefer neutral-accommodation or the repeal approach? Ithink the only sensible answer is that it depends. In cases where thegroup requesting the exemption is hard to target, but the benefits ofthe law are large, neutral accommodation is more appropriate.Consider, for instance, the neutral-accommodation offered to USdraftees.42 At present any conscientious objector, religious or not,can merit an exemption. If the draft can be publicly justified, then theneutral-accommodation approach seems appropriate, given all thevaried doctrines that people raise to object to the draft. Targetinggroups is difficult, so allowing individuals to opt-out based on theirown personal views is perhaps the more effective approach toassigning exemptions.

But in cases where the group requesting the exemption is suffi-ciently large and the benefits of the law sufficiently modest, the lawshould be repealed. It is simply not worthwhile to impose a lawwhose benefits are limited but that cannot be justified to a largesector of the populace. Further, repeal may be appropriate wheninstitutionalizing the exemption is too legislatively challenging.

One might reasonably worry that I allow for too many religiousexemptions. This raises two objections: first, that my view threatensanarchy, and, second, that my view will create smaller, but stillsevere, pragmatic problems in creating and enforcing law. I haveelsewhere addressed the question of whether the intelligibilityrequirement courts anarchy, but it’s worth focusing on whetherintelligibility will create pragmatic problems for religious exemptionsin particular.43

Justice Scalia advanced a version of the anarchy objection inEmployment Division v. Smith. If the state must always show a com-pelling interest to justifiably burden religious citizens, it would be‘courting anarchy’ because it would commit itself to ‘deeming pre-sumptively invalid, … every regulation of conduct that does notprotect an interest of the highest order’. The resulting prospectwould generate exemptions from ‘civic obligations of almost every

42 I assume here, for the sake of argument, that the draft provides a considerable social benefit to theUS, though I do not think this is a plausible position.

43 See Vallier (2014, pp. 214–217).



conceivable kind’.44 But surely Scalia exaggerates. Judges oftenaccommodate religious complaints, and while courts have not al-ways articulated principled reasons for these accommodations, weneed not worry about a sharp slippery slope even under our presentinstitutions.45 To add to this point, members of the public are oftenrationally committed to complying with decision procedures to settletheir disputes, so we need not regard many accommodation requestsas a threat given that they can be settled in publicly justified ways.

However, even if critics set aside the anarchy objection, they willlikely claim that a regime of extensive accommodation wouldundermine the rule of law. Politics cannot be merely a matter of‘particularistic requests for exceptions’ based on complaints ofunfairness, for otherwise ‘governance in even a moderately hetero-geneous society would be impossible, and there would be no suchthing as the rule of law’.46 There are two practical problems here.First, on my view, the informational and adjudicative demands ofassessing citizens’ diverse and dispersed claims may significantlyburden judges and legislators. When accommodations are confinedto small groups like the Amish, these judicial and legislative burdensare low. But one can argue that my view substantially increases theseburdens. Second, the cumulative effect of religious accommodationsmay undermine the rule of law because coercive laws will need somany exceptions that legislatures lose their ability to provide clearand general behavioral guidelines.

I offer two replies. First, these problems assume that religiousexemptions are largely granted during or following the legislativeprocess. But the Principle of Intelligible Exclusion permits almost anyinstitutional solution that prevents citizens from being unjustifiablycoerced. The drawbacks of legislative and judicial tinkering shouldlead us to support institutions that reliably avoid imposing prob-lematic laws on the populace in the first place. The costs of ex postaccommodation require that our institutions be less friendly to theuse of coercion in general. For instance, Smith involved a religiousexemption from the penalties of breaking federal anti-drug laws, in

44 Smith, 110 Sup. Ct. 1595 (1990), p. 1605. Cited in Stephen Macedo, Diversity and Distrust: CivicEducation in a Multicultural Democracy (Cambridge: Harvard University Press, 2000a), pp. 192–193.

45 Even Stephen Macedo, a consensus liberal, thinks Scalia exaggerates. With expansive exemptions,‘we are not on a quick slide into the abyss’ (Ibid., p. 195).

46 Macedo (2000a, pp. 204–205).

KEVIN VALLIER


this case laws restricting the use of peyote. But if the U.S. govern-ment was less interested in prosecuting a paternalistic drug war ofquestionable efficacy, then the use of peyote would never have beenregulated in the first place, such that Smith would not have arisen.47

A more limited government could avoid the pragmatic problemsassociated with extensive exemptions.

A second, more moderate option would be for legislatures tomore clearly articulate principles on which religious exemptions arebased. With clear principles, it would be easier for legislators tofashion legislation that would avoid raising concerns about religiousexemptions. Furthermore, judges could more easily evaluate reli-gious complaints. For example, judicial arguments about exemptionsoften seem to be in tension with one another, as in some casesconscientious objections are ruled to override the state’s interest andin other cases the opposite occurs. A more consistent approach couldalleviate the problems associated with our piecemeal practice. Ar-guably we’ve already moved in this direction with the ReligiousFreedom Restoration Act and the Religious Land Use and Institu-tionalized Persons Act. Judges have had legal guidelines for admin-istering exemptions for many years.

VII. MULTICULTURAL ARRANGEMENTS

In order to illustrate the power of the theory I have developed, Iwould like to examine the public justification of legal arrangementsin cases where diverse legal rules are imposed on people dependingupon their religious affiliation. Consider the division of marriage anddivorce law in India, where separate statutes govern Hindus, Mus-lims, and Christians, and other religious groups.48 Indian Muslimlaw, for instance, is partly based upon the Sharia. The contours ofthese codified legal systems have varied considerably over the cen-turies, and since Indian independence, there have been attempts toharmonize these laws, but differences remain. In the case of Indianfamily law, it is not helpful to describe the variability of the laws in

47 Of course, Smith and Black’s employer may still have fired them, but Oregon would have had nogrounds on which to deny them unemployment benefits.

48 These laws have been specified under various Indian laws, such as the Hindu Marriage Act of1955, the Special Marriage Act of 1954, the Foreign Marriage Act of 1969, the Muslim Personal LawApplication Act of 1937, The Dissolution of Muslim Marriages Act of 1939, the Muslim Women Act of1986 and the Christian Marriage Act of 1872.



terms of exemptions, as the laws are indexed to different religions,none of which are practiced by the overwhelming majority of thepopulace. We are instead focused on multicultural arrangements.

The principle of intelligible exclusion has no problem with mul-ticultural legal arrangements, at least not in principle.49 The justifi-cation or defeat of such laws will depend on the reasons of thevarious populations, and given the interest various religious groupshave in living in accord with their own laws and not generating civilstrife between different religious populations, there is a good case tobe made for varying legal regimes. In these cases, condition (c) canbe dispensed with, as there may be no majority view about whichlaws should apply. If each group gets their preferred system, thenfew costs should be imposed on the others, so condition (d) will bemet. The main question, then, is whether each group has sufficientreason to endorse a set of laws that apply to them and that the lawsdo not substantially burden the integrity of any of those groups. Inthe case of polycentric marital statues, these conditions appear to bemet. Persons can self-sort based on their religious commitments,such that they both have sufficient reason to endorse the marriagelaw that applies to them and experience no burden at all on theirintegrity, as the burdens of marital law are not integrity-violatingburdens. Thus, polycentric arrangements of this sort can be publiclyjustified under some conditions. At this stage, we cannot say any-thing definitive, but it is worth pointing out that the principle ofintelligible exclusion permits these arrangements.

VIII. RELIGION IS NOT SPECIAL50

While liberal political theory tends to favor secular citizens, liberalpolitical practice tends to favor religious citizens. The Constitutionprotects the free exercise of religion and not secular moral philoso-phies. Commonly cited examples are the panoply of exemptionsgiven to the Amish. The courts would not protect secular personswho offered similar objections.51

49 So long, of course, that the marriage law is not systematically abused, such as using the law toshield men from exploiting young women through early marriage.

50 Some of the following section is covered in Vallier (2014, pp. 217–219).51 Brian Leiter, Why Tolerate Religion? (Princeton: Princeton University Press, 2013), p. 3.

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Some argue that by giving special preference to religion, U.S.constitutional law establishes an inequitable privilege for religiousover secular forms of life. But this preferential treatment of religionis inconsistent with the Equal Protection clause of the FourteenthAmendment. We can illustrate with a prominent counterexample –conscientious objections to the military draft. For a significant stretchof U.S. history, conscientious exemptions were only given to pacifistChristian denominations. In the 1940s, conscientious objector statuswas extended to all theistic religions.52 Two decades later, consci-entious objector status was extended to nontheistic religions andfinally to nonreligious, moral doctrines.53 American lawmakers oftenresisted this broad extension of conscientious objector status on thegrounds that such an extension would permit too many exemptionsand encourage deception on the part of objectors. But equal treat-ment won out and few legislative problems manifested themselves.54

Several legal theorists have argued that preferential treatment ofreligion is morally unjustified. Michael Perry has defended a right of‘moral freedom’ that is symmetrical with the presently recognizedright of religious freedom.55 If he is correct, the reasons that count infavor of the legal protection of religious conscience apply no lessforcefully to moral conscience: the features that make religionworthy of protection (such as its central role in structuring valuesand practices) apply to moral doctrines as well. Greenawalt hascountered that a number of practical, legal and moral reasonsappropriately motivate courts to give religion a special status. Forinstance, many judges may have trouble distinguishing sincereconscientious objections from less important moral objections unlessthey use religion as a standard of demarcation.56 Legal tradition itselfmight provide reason to protect religion’s special treatment as well.And in comparison to nonreligious moral claims, the standard true

52 See United States v. Kauten (1943) and Berman v. United States (1946).53 In United States v. Seeger (1965) and Welsh v. United States (1970) respectively.54 Though there are other practical problems, such as the difficulties faced by conscientious

objectors that are atheists. For a discussion of problems, such as those raised by Welsh v. United States,see Andrew Koppleman, ‘The Story of Welsh v. United States: Elliott Welsh’s Two Religious Tests’, inRichard Garnett and Andrew Koppleman (eds.), First Amendment Stories (Foundation Press, 2011).

55 Michael Perry, ‘From Religious Freedom to Moral Freedom’, San Diego Law Review 47(4) (2010):pp. 993–1013, p. 996. The literature on this question is rather large and I cannot adequately review ithere. For a helpful overview, see Micah Schwartzman, ‘What if Religion Isn’t Special?’, University ofChicago Law Review 79(4) (2012): pp. 1351–1427. I raise the issue of whether religion is special toillustrate how my theory approaches the issue.

56 Greenawalt (2006, p. 906).



believer seems to have more at stake, because ‘God may punishwrongdoers when this life is over’.57 But even Greenawalt eventuallyadmits that if nonreligious claims of conscience are sufficientlysimilar to religious claims, and if there are no overriding independentconcerns, the Equal Protection Clause combined with the Estab-lishment Clause should be read as requiring that religious and moralclaims be treated symmetrically.58 Because intelligible defeaters canbe either religious or secular, I draw no morally relevant distinctionbetween the two. It follows that asymmetric treatment of religionand morality in the law is unjustified.

It will be useful to contrast my view with Brian Leiter’s recentargument that religion should not receive special legal treatment.59

Leiter contends that religion does not deserve special treatmentbecause there is no feature essential to religious belief that requiresthe sort of respect that would justify special treatment. In particular,religion is not worthy of ‘affirmative’ respect, where religious beliefis respected based on some virtue or merit of people who typicallyhold such beliefs.60 Instead, religious belief merely requires ‘recog-nition’ respect, understood as the simple toleration of religious belief.This is because most contemporary religious beliefs are ‘culpablyfalse’, given the force of Enlightenment critiques of religion.61 Reli-gious belief is culpably false belief in part because religious belief, byits very nature, does ‘not answer ultimately … to evidence and rea-sons, as these are understood in other domains concerned withknowledge of the world’.62 Since, plainly, there is no reason toaffirmatively respect culpably false belief that is essentially insulatedfrom evidence and reason, there is little reason for the law to givereligion special treatment. In part because Leiter seeks to downgraderespect for religious belief, he takes what Greenawalt terms theneutral-restrictive approach, where there is no presumption on be-half of protecting claims of conscience.63 Religious belief is not to besingled out and ‘there should not be exemptions to general laws with

57 Ibid., p. 914.58 Ibid., p. 917.59 Leiter (2013).60 Ibid., pp. 77–85.61 Ibid., p. 77.62 Ibid., p. 34.63 Ibid., p. 130.

KEVIN VALLIER


neutral purposes, unless those exemptions do not shift burdens orrisks onto others’.64

My view stands in stark contrast to Leiter’s. I seek to upgraderespect for nonreligious comprehensive and moral belief to the levelpresently extended to religious belief. Following Rawls, I extendreasonable pluralism to cover most forms of religious belief and denythat political theory should proceed based on the assumption thatreligious belief is culpably false. Leiter assumes without argumentthat even contemporary analytic philosophical views like reformedepistemology or Thomistic natural law ethics are culpably post hocattempts to defend religious belief in the face of counterevidence.65

In contrast, the epistemology appropriate to political theory allowsthat at the right level of idealization, members of the public will non-culpably affirm such views, despite the purported force of Enlight-enment critiques of religion.66 If we hold that even philosophicallysophisticated members of the public have culpably false views, thenwe deny reasonable pluralism, a foundational assumption of publicreason liberalism.

It is no surprise, then, that Leiter views Rawls’s political turn as‘unfortunate’ because political liberalism does not permit dismissingas culpably false (half of) the views that instigate the religion andpolitics debate.67 Because Leiter does not recognize reasonable plu-ralism in this robust sense, it is natural for people of faith to find hisview off-putting, a demerit of his position. Given Leiter’s rejection ofreasonable pluralism, then, we should reject his neutral-restrictiveapproach.

IX. THE IMPORTANCE OF STANDARDS IN TIMES OF CONTROVERSY

With the HHS contraception mandate and the progress of marriageequality, the question of the scope of religious liberty has become atimely, critical and unfortunately partisan issue. Elaine Huguenin,the Green Family, and Little Sisters of the Poor ask to be exempt

64 Ibid., p. 4.65 Ibid., pp. 81, 90.66 See Vallier (2014, pp. 158–160) for an argument to this effect. Convergence-based public reason

liberals do not extend this respect to religious belief simply because it is religious, but rather because on aconvergence account of justificatory reasons, religious reasons will almost certainly count as justifica-tory in a great many cases.

67 Leiter (2013, p. xviii).



from the legal institutionalization of progressive ideals of sexualmorality; opposition and support for their requests are often fero-cious. To cut through the controversy, we need philosophicallyattractive and non-partisan methods of determining whether theymerit exemptions on moral grounds. For this reason, my aim hasbeen to develop such a standard for judging when a liberal societymorally must grant groups and individuals religious exemptionsfrom laws. My claim is that within public reason liberalism, weshould adopt a principle of intelligible exclusion, which holds thatcoercive laws that persons have sufficient intelligible reason to rejectshould not be imposed upon those objectors. In the presence ofintelligible defeaters, individuals and groups should be exempt fromlaws that impose unique and substantial burdens on their integrity,in cases where the large majority of other citizens have sufficientreason to endorse the law, and if the costs of the exemption paid bythe rest of the public are non-trivial or compensated for. Otherwise,the laws in question must be repealed or no exemption may begranted. I have also argued that religious reasons are not unique injustifying exemptions. Secular reasons must be accorded similarnormative power.

Given the recognition of reasonable pluralism and the vast pa-noply of defeater reasons allowed into public justification by theintelligibility requirement, religious exemptions will be publiclyjustified in a wide array of cases.

X. APPENDIX: EXEMPTION TABLE

I’ve included this appendix to determine when an exemption ispermitted or required (if there is to be a law at all, for no law isalways permissible on a public reason view). The table below gen-erates an answer based on the rankings of laws, exemptions, and nolaw for both the minority requesting the exemption and the majoritypopulation. That is, whether an exemption is permitted or required(and even whether there may be a law) is a function of (a) the rankingof three options by (b) two groups, the majority and the minority.Define ‘L’ as the law, an exemption as ‘E’, with ‘L + E’ counting asimplementing the law in conjunction with the exemption. I will label‘no law’ as ‘�L’ whereas ‘L’ implies a law without the exemption.The minority populace is designated a and the remaining populace

KEVIN VALLIER


as u such that a and u will rank L, �L and L + E. All the relationsare ones of strict preference (ACB or Ap B). There are no indif-ference relations (AGB) or weak preference relations (A¤B orA^B). We are left with six preference permutations for both a andu:

Notice: when �L is preferred to L, L is defeated. In fact, that iswhat it means for a law to be defeated – that the evaluative standardsof members of the public regard no law as superior to the law. Whenboth parties rank two options higher than �L then those optionsform an eligible set where public reason permits the state to imposeeither option without disrespect or authoritarianism. This will meanthat in some cases, such as when both parties have {L, L + E, �L} asa left-to-right ranking, an exemption is permitted but not required.

Given all the possible rankings, we’ll end up with 36 options, butwe can forgo charting obvious cases.68 We can exclude all caseswhen u ranks �L highest, as it generates repeal, which sets 12options aside. However, when the minority a ranks �L highest, thisgenerates L + E as the appropriate social alternative. Rememberthat since E applies to a, L + E does not affect them. So a does notrank L + E, just as a citizen of the United States does not rankFrench laws.69 We only rank laws that apply to us. This will con-dense the remaining 24 options into 8 that I have placed in thefollowing table:

{L, �L, L + E}{L, L + E, �L}{�L, L, L + E}{�L, L + E, L}{L + E, L, �L}{L + E, �L, L}

68 In these cases, I’m assuming that the law will be imposed on the majority, if it is imposed at all. Iaddressed cases where the law may be applied only to minorities in Section VII.

69 One might argue that we have an interest in others being treated properly. Perhaps so, but publicreason liberalism need not address this problem by allowing people to rank laws that would impose nocoercion on them. Instead, their concerns can be treated as evidence that the people coerced havedefeaters. If the coerced group lacks a defeater, however, the objector group cannot defeat the law.



Bowling Green State University,Bowling Green, OH, USAE-mail: [email protected]

u Ranking a Ranking Eligible Outcomes (Note: �L is always permitted)

{L, �L, L + E} {L, �L} Law Applied Uniformly{L, �L, L + E} {�L, L} Exemption Required{L, L + E, �L} {L, �L} Law Applied Uniformly or Exemption{L, L + E, �L} {�L, L} Exemption Required{L + E, L, �L} {L, �L} Law Applied Uniformly or Exemption{L + E, L, �L} {�L, L} Exemption Required{L + E, �L, L} {L, �L} Either Exemption Required or Repeal{L + E, �L, L} {�L, L} Exemption Required

KEVIN VALLIER


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